Fox Challenges Dish Network’s Sling Service

dish sling adapter

Bolstered by a victory for broadcasters against Aereo last month, Fox on Monday challenged the legality of a Dish Network feature that allows subscribers to watch station feeds on devices outside the home.

In oral arguments before the 9th Circuit Court of Appeals, Fox’s legal team sought to reverse a lower court ruling in which a federal judge refused to grant a preliminary injunction that would put an immediate halt to Dish’s Dish Anywhere service, concluding that they had not proven they would suffer irreparable harm if it continued.

But Richard Stone of Jenner & Block, representing Fox, said that stations do suffer harm because Nielsen does not measure ratings from the devices. “We are losing viewership because it is not being measured,” he said. Fox also contends that the service would affect its retransmission negotiations with other multichannel distributors.

Dish is using Slingbox technology for its Anywhere service, and has made much of the fact that the broadcasters have not challenged its legality up until now. The Slingbox was first introduced in 2005 and deployed in the Dish services in 2012.

Stone compared Dish’s Sling service to Aereo, the streaming company that halted last month after the Supreme Court ruled that it was infringing in offering broadcast streams without permission. Although Dish does license rights to retransmit Fox content, Stone said its contract with Fox prohibits it from streaming their stations over the Internet.

Nevertheless, Judge Marsha Berzon seemed skeptical of the Dish-Aereo comparison.

“The Supreme Court has all sorts of caveats about how this is about Aereo and nothing else,” she said. She added, “I don’t think you can stand there and say it’s the same thing.”

Dish’s legal team, led by Josh Rosencranz of Orrick, argues that the Aereo decision does not impact their case. Aereo’s system used centralized remote antennas assigned to each subscriber, while Sling “is just like a DVR or VCR — it is built right into the Hopper with Sling DVR in customers’ living rooms.”

“Customers pay for the right to receive works, with Fox’s authorization, and do receive them at home before sending them to themselves,” Dish’s lawyers wrote in a letter to the court last month.

Dish says that their Sling technology is no different from that used by consumers when they bought Slingboxes on their own.

Fox claims that Dish has used a “rhetorical sleight of hand” to confuse the court into believing that they are challenging the legality of standalone Slingboxes. Rather, they contend that their case is over the service that Dish provides in deploying Sling technology.

“By refusing to enforce Fox’s property rights, the district court has imposed a compulsory license no different than forcing a landowner to allow trespassers to travel across her property as long as they pay a toll set by the court,” Fox’s legal team said in its brief. “That can’t be right.”

Fox also is in the midst of separate litigation over Dish’s offering of Hopper features that allow subscribers to automatically delete commercials from programming they record.

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  1. Marten says:

    Dish Anywhere does a lot more than view Fox programming. With the Sling capability one can view material that has been saved on the DVR as well as live TV. You can set and remove timers for recording program material to be viewed later either over the sling internet connection or sitting at the site of the receiver controlling it with the remote. I rent a vacation home and can “clean up” after a tenant that has saved material and made other changes to the DVR without traveling 600 miles. So the utility of the Sling device seems not to infringe upon Fox but it might increase viewership and allow recorded Fox material to be viewed repeatedly. Does Fox want to inconvenience its audience? Back off you Fox litigators, try to do no harm to the folks you work for. Right now you are botching the operation.

  2. Christina says:

    Go away Fox! Seriously can you be any more money hungry? All we want to do is work and watch some TV. Do we need to be charges for every cool feature? Get lost!

  3. james says:

    IF its on your hopper don’t they get the Nielsen ratings from the home box being on the channel? sounds like they want to double dip shame on fox.

  4. Scott Gilbert says:

    Fox considers Dish’s Slingbox the same as Aereo? But, doesn’t Dish PAY RETRANSMISSION fees to Fox? Of course they do or Dish couldn’t carry any of the Fox Networks’s programming at all. And, to use Dish’s Slingbox, you have to pay for Dish. So, it seems to me, that Fox doesn’t want people watching Fox programs that they are already paying for, if they are not at home to watch their programming. And yet, Fox doesn’t mind if you get their programming free over the air…

  5. Warren says:

    My office is in an outbuilding on the same property as my home. I use slingbox so that I don’t have to run a wire from my house to my office, When I want to watch something on the DVR, I could walk into my living room and watch it there, or I can watch the exact same recording from the exact same DVR in my office. So does Fox contend that if I run a wire that is OK but without a wire is wrong? I already paid Dish (and by extension Fox) to view their programming.

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